By Mark Hansel
NKyTribune managing editor
The Kentucky Office of the Attorney General (OAG) has assigned a Special Prosecutor to investigate Boone Commonwealth Attorney Linda Tally Smith for conduct related to the criminal case against David Wayne Dooley.
The Northern Kentucky Tribune obtained several documents through an open records request, including those that identify Shane Young, Commonwealth Attorney for the Ninth Judicial Circuit (Hardin County), as the Special Prosecutor.
Young could not be reached for comment late Monday afternoon.
In 2014, Dooley was convicted of killing Michele Mockbee, a mother of two, at the Thermo Fisher Scientific facility in Boone County where both worked.
Mockbee was bludgeoned to death at the facility, located in the Northern Kentucky Industrial Park, shortly after arriving to work early on the morning of May 29, 2012.
The Office of Attorney General Andy Beshear requested a CR 60.02 hearing to determine if Dooley should be granted a new trail because of questionable conduct by Tally Smith. Tally Smith, engaged in an affair with the lead investigator in the case, then Boone County Sheriff’s Det. Bruce McVay.
Tally Smith and McVay admitted to the affair, but she said it began after Dooley was convicted in 2014. Dooley’s attorneys at the CR 60.02 hearing, Deanna Dennison and Jeff Lawson, also argued that video surveillance of a “random dude,” seen walking on the property hours before Mockbee was killed, was never given to Dooley’s trial attorneys.
In May, Boone County Circuit Judge James R. Schrand, who presided over the original trial, as well as the CR 60.02 hearing, overturned Dooley’s conviction and granted him a new trial. Schrand is also scheduled to preside in the retrial, which is expected to begin later this year.
Tally Smith said she cooperated fully with the OAG and Dooley’s defense team for the CR 60.02 hearing and testified for two days under oath. She says she has done everything asked to demonstrate that she has not done anything wrong, as it relates to her position as Commonwealth Attorney.
“I will fully cooperate with any investigation undertaken by a Special Prosecutor in this case, as I have with the Attorney General’s office since I requested the appointment of a Special Prosecutor myself back on October 3,” Tally Smith said.
At that time, the OAG took over the Dooley case and Special Prosecutor Shawna Kincer and Deputy Attorney General J. Michael Brown represented the State at CR 60.02 hearing. Kincer has since left the Office of the Attorney General and Special Prosecutor John Heck represented the OAG at a pretrial conference in June.
The decision to assign a Special Prosecutor is in response to a letter to the OAG from Boone County Attorney Robert Neace dated March 23, requesting an investigation of Tally Smith’s conduct, as it pertains to the Dooley case. The portion of Neace’s letter that specifically identifies the conduct he asks to be investigated has been redacted, but in a later passage, he suggests that it could be “criminal.”
Neace reference’s Tally Smith’s actions in regard to the case, which include correspondences between the Commonwealth Attorney and McVay, that were introduced as evidence at the hearing.
In one long letter that Tally Smith says was never sent, she tells McVay, “Even if I was aware that you had lied here or there on cases, I wouldn’t have wavered in that loyalty to you and ‘having your back.’”
She also wrote that it was common knowledge among investigators McVay had mentored in the Boone County Sheriff’s office that he skirted the rules during investigations.
“They are left with the impression that it is actually okay to do the things that you do. And since they have seen that you and I are close, they talk about these things in front of me like they think that I am actually okay with these things, too. In the last two months alone, I’ve had a number of the new ones suggest that they would just ‘pull a Bruce. Pulling a Bruce’… it is actually a phrase that they all use.”
Neace wrote that in light of the evidence revealed at the CR 60.02 hearing, as it relates to Tally Smith’s conduct as Commonwealth Attorney, he felt obligated to call for an investigation.
“It is inappropriate and a conflict for me or my office to officially review and/or prosecute any criminal action against Ms. Smith. However, based on the information available, the always overriding need to protect our justice system and to simply ‘do the right thing,’ Ms. Smith’s action must be scrutinized very closely.”
In a response to Neace dated June 2, Michael A. Wright Assistant Deputy Attorney General, acknowledged Young was being assigned as a Special Prosecutor to investigate the allegations.
“In your email, you suggested you believed ‘it was possible that Ms. Smith has violated ‘a number of criminal statutes that you identify…Finding that your email states sufficient cause to find a conflict on behalf of your Office, your request for a Special Prosecutor is hereby granted and an appointment is made pursuant to KRS Chapter 15.”
The letter goes on to say Young, “will have independent, unfettered decision-making authority to conduct an evaluation and/or investigation and determine if Linda Tally Smith has committed any offense for which criminal charges are warranted. Separately, the Office of the Attorney General will maintain control of the retrial of the Dooley case.”
In a letter to Young, also dated June 2, Wright thanks the Ninth Judicial District Commonwealth Attorney, on behalf of the OAG, for agreeing to serve as Special Prosecutor.
The letter also provides a cursory history of the Dooley case as well as information regarding a thumb drive presented to the OAG that contained some of the information that may have impacted the Dooley case.
The correspondences between Tally Smith and McVay admitted as evidence were among the equivalent of thousands of pages of documents contained on the thumb drive, which was provided by attorney Steven D. Wolnitzek.
Wolnitzek represents Nicholas Ramler, a former employee of the Commonwealth Attorney’s office who was fired by Tally Smith. Ramler is now involved in civil litigation with Tally Smith and her husband, District Judge Jeffrey Smith, because of his decision to copy the information from a server in the Commonwealth Attorney’s office.
In the letter to Young, Wright references Wolnitzek’s letter in explaining why the OAG took over the Dooley case.
“Wolnitzek’s letter alleged that the Commonwealth’s Attorney Linda Tally Smith may have violated the tenants of Brady v. Maryland in that she intentionally withheld material that was exculpatory and relevant for impeachment purposes. Ms. Tally Smith asked for a Special Prosecutor to respond to Wolnitzek’s allegations. The Office of Attorney General appointed itself, pursuant to KRS Chapter 15.”
The letter goes on to provide details of the CR 60.02 hearing, including the decision to grant Dooley a new trial. It is because of its involvement in the Dooley case that the OAG has asked Young to investigate the allegations.
“This office believes a conflict of interests, or at least the appearance of impropriety exists for the Office of Attorney General to conduct an investigation of Tally Smith. Thus the need for your appointment. This office will provide you with background materials to allow you to begin your investigation.”
The decisions by Judge Schrand to grant a new trial and the OAG to appoint a Special Prosecutor are not an indication of Dooley’s guilt or innocence. That will be considered by a jury of his peers after evidence is presented at the retrial.
Contact Mark Hansel at mark.hansel@nkytribune.com
To follow the Tribune’s coverage of this case, click on the links:
Boone Commonwealth’s Attorney seeks damages from fired employee; says he shared personal info
Explosive allegations against Commonwealth’s Attorney, investigators contained in Dooley filing
Defense hammers home argument that withholding of video evidence warrants new trial for Dooley
Former detective McVay admits to affair with Boone Commonwealth’s Att’y; another video is revealed
Boone Commonwealth’s Attorney Tally Smith admits to affair, says she did not withhold evidence
Tribune analysis: Commonwealth’s Attorney Tally Smith should resign; state AG should investigate
Boone County GOP to wait for resolution of legal matters to discuss asking Tally Smith’s to resign
New trial for convicted killer David Wayne Dooley
Retrial of David Dooley, charged in 2012 killing in Boone County, takes a small step forward
This is no surprise,I have further proof that Smith is not the only one hiding evidence in trials in Boone County including instructions to officers to file false charges against individuals and along with at least three officers and another commonwealth attorney to hide evidence or conveniently just lose it. When this evidence was tried to be shown at tried,Judge Shrand would not allow,yet he had not seen said evidence.If interested in the information I have please contact me.Mitchael Wade at email:midiwade @gmail.com or by phone:859-760-7696.